Date : 19991104
Docket : T-971-99
OTTAWA, ONTARIO, THURSDAY, THIS 4TH DAY OF NOVEMBER, 1999
BEFORE: THE HONOURABLE MADAME JUSTICE McGILLIS
BETWEEN:
MERCK FROSST CANADA & CO.
Applicant
- and -
THE MINISTER OF NATIONAL HEALTH
Respondent
ORDER
For reasons delivered orally, the motion is dismissed with costs.
Date : 19991104
Docket : T-971-99
BETWEEN:
MERCK FROSST CANADA & CO.
Applicant
- and -
THE MINISTER OF NATIONAL HEALTH
Respondent
REASONS FOR ORDER
[Delivered from the Bench in Ottawa, Ontario
on November 4, 1999]
McGILLIS J.
[1] Counsel for the applicant has brought a motion under Rule 302 of the Federal Court Rules, 1998 to amend the application for review challenging the decision of the Minister of Health ("Minister") dated June 2, 1999 to release certain records under the Access to Information Act , R.S.C. 1985, c. A-1. In particular, he seeks to include in the application a challenge to another decision made by the Minister on October 5, 1999 to release certain records. The applicant has brought the motion to amend its existing application for review due to its failure to institute an application challenging the October 5, 1999 decision within the time limit prescribed in subsection 44(1) of the Access to Information Act.
[2] In support of the motion, counsel for the applicant filed his own affidavit. Counsel for the respondent advised the Court that he would not object to counsel for the applicant presenting argument based on his affidavit, on the understanding that any "contentious" matters in the affidavit would not be relied upon by the Court. In response, counsel for the applicant indicated that he had filed the affidavit solely for the purpose of placing the necessary documentary exhibits before the Court and that he would not rely on any contentious matters deposed to in the affidavit. Given that statement by counsel for the applicant, I granted him leave, pursuant to Rule 82, to present argument to the Court based on the documentary exhibits to his affidavit.
[3] Counsel for the applicant submitted, among other things, that Rule 302 contemplates that more than one decision may be challenged in an application in circumstances where the decisions are part of an ongoing process and the facts are not different. While that principle may be applicable in certain limited factual situations, the evidence in the present proceeding establishes that the records to be released as a result of the October 5, 1999 decision are "not the same records" as those dealt with in the earlier decision. Given the limited evidence in the record, I have concluded that the applicant has failed to establish that the factual circumstances underlying the two decisions are related, or that the October 5, 1999 decision was made as part of an ongoing process. In the circumstances, I have concluded, in the exercise of my discretion, that the application in the present proceeding should not be amended to incorporate the October 5, 1999 decision.
[4] The motion is dismissed with costs.
OTTAWA
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